A contractor failed to convince a judge it lacked fair notice of enforcement intent by the Mine Safety and Health Administration, even though MSHA once vacated citations issued at the contractor’s storage facility for lack of jurisdiction and then did not inspect the facility for the next three years.

Austin Powder Co. operates an explosives storage facility on property it leases from an adjoining quarry operator in Decatur County, Tennessee. Stored explosives owned by Austin are used to provide blasting services for the quarry, as well as for blasting at other facilities in the region covered by MSHA and the federal Occupational Safety and Health Administration.

In October 2008, MSHA issued eight citations to Austin for alleged violations at the facility, but vacated them after deciding it lacked jurisdiction, in part because the facility was not located on the mine site.  For the next three years, MSHA did not inspect the facility, but, in a turnabout in February 2012, the agency cited the contractor for two alleged violations and proposed a $2,600 fine. Based on its previous experience with MSHA enforcement at the storage site, Austin appealed. It argued in part that if MSHA had changed its mind about asserting jurisdiction, the contractor deserved fair notice before the agency took enforcement action.

Under legal precedent, the standard for fair notice is whether a reasonably prudent person familiar with the mining industry, the Mine Act, and its protective purposes would recognize MSHA’s jurisdiction over the storage unit. In so doing, courts apply a variety of factors to determine if the agency has provided fair notice of it s enforcement intent. In a June 12 decision (http://www.fmshrc.gov/decisions/alj/ALJo_6082015    -SE2012-391-M), Administrative Law Judge Kenneth Andrews ruled that MSHA had met this burden.

ALJ Andrews noted that one factor is enforcement consistency, which here weighed in favor of Austin Powder.  But the judge stated that other criteria outweighed consistency, including the text of the Mine Act, its placement in the overall regulatory scheme, and public notices available to the regulated community about MSHA’s jurisdictional boundaries. Andrews explained that, based on the language of the Mine Act and supporting case law, it is “plain” that Austin’s site is a “mine” because it is engaged in mineral extraction. Further, the Mine Act is central to MSHA’s regulatory scheme, providing the basis for MSHA’s legal authority. Finally, adequate notice is provided by existing case law and from MSHA’s Metal and Nonmetal General Inspection Procedures Handbook, which instructs enforcement personnel to inspect areas storing explosives on behalf of another federal agency with which MSHA has had a long-standing memorandum of understanding, he said.

“Together, these criteria outweigh the fact that MSHA officials were inconsistent in their application of the law in this single instance for a limited period of time,” Andrews said.

Both sides had sought summary decision in the case. In denying Austin’s motion and granting MSHA’s, Andrews ordered the parties to confer on a settlement and either file a joint motion for approval within 30 days or provide him with a status report.